Brulotte'S Web

In 2015 the Supreme Court held in Kimble v. Marvel Entertainment that stare decisis required adherence to the half-century-old, much criticized rule in Brulotte v. Thys. Justice Douglas's Brulotte opinion concluded that license agreements requiring royalties measured by use of a patent after its expiration are unenforceable per se. The court need not inquire into market power, anticompetitive effects, or effects on innovation, and it may not accept any defense. In declining to overrule Brulotte, the Kimble Court observed two things: First, reliance interests had developed around the Brulotte decision and most people had learned to live with it. Second, Congress had had many opportunities to overrule the decision but had resisted every invitation to do so. This article explores some of the reasons why Brulotte was a poor decision as either patent or competition policy, and considers whether stare decisis was a sufficiently weighty reason for adhering to it.